Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 205 FSCO A13-009932

BETWEEN:

EDELINA SAMPANG-GOMEZ Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Arbitrator Deborah Anschell Heard: In person at ADR Chambers on January 26 & 27, 2017 and March 31, 2017, and by telephone conference on May 26, 2017 Appearances: Mrs. Edelina Sampang-Gomez participated Mr. Darryl Singer participated for Mrs. Edelina Sampang-Gomez Mr. David Murray participated for Personal Insurance Company of Canada

Issues:

The Applicant, Mrs. Edelina Sampang-Gomez, was injured in a motor vehicle accident on September 22, 2012 (“the accident”) and sought accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

1. Do Mrs. Sampang-Gomez’s injuries fall within the Minor Injury Guideline within the meaning of the Schedule?
2. Is Mrs. Sampang-Gomez entitled to payments for the cost of examinations for the following: a) $1,986.00 for a psychological assessment pursuant to Treatment Plan (OCF-18), dated February 22, 2013; b) $2,287.92 for psychological treatments pursuant to Treatment Plan (OCF-18), dated June 11, 2013; and c) $1,996.00 for a Driver’s Re-Integration Assessment pursuant to Treatment Plan (OCF-18), dated October 29, 2014?
3. Is either party entitled to its expenses in respect of the Arbitration?

Result:

1. Mrs. Sampang-Gomez’s injuries fall within the Minor Injury Guideline within the meaning of the Schedule.
2. Mrs. Sampang-Gomez is not entitled to payments for the cost of examinations and medical treatment for the following: a) $1,986.00 for a psychological assessment pursuant to Treatment Plan (OCF-18), dated February 22, 2013; b) $2,287.92 for psychological treatments pursuant to Treatment Plan (OCF-18), dated June 11, 2013; and c) $1,996.00 for a Driver’s Re-Integration Assessment pursuant to Treatment Plan (OCF-18), dated October 29, 2014.
3. Personal is entitled to its expenses in respect of the Arbitration. If the parties are unable to agree on the quantum of the expenses of this matter, the parties may request an appointment for determination of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Applicant’s Evidence and Submissions

Evidence of Dr. Brian Adno

The first witness for the Applicant was Dr. Brian Adno. Dr. Adno is a family physician. He studied at the University Witwatersrand in Johannesburg, South Africa. Dr. Adno has been Mrs. Sampang-Gomez’s family doctor for almost 17 years. Mrs. Sampang-Gomez generally sees Dr. Adno between four and eight times per year. Prior to the accident, Dr. Adno primarily saw Mrs. Sampang-Gomez for breast and gynaecological issues. She suffered from fibrocystic breast disease, as well as fibroids. Dr. Adno’s evidence was that he didn’t recall Mrs. Sampang-Gomez having any psychological issues prior to the accident.

Mrs. Sampang-Gomez first saw Dr. Adno in regards to the accident on September 29, 2012. Her complaints on that date were mild pain at the top of the back, and lower back pain. Dr. Adno’s diagnosis was musculoskeletal pain. There were no symptoms that indicated anything other than soft tissue injuries. Dr. Adno completed a Disability Certificate (OCF-3) following that visit.² The Disability Certificate refers to arthritic sprain of the upper and lower back, and sprain of her neck. In cross-examination, Dr. Adno advised that at the time he completed the Disability Certificate, there was a very minimal restriction on Mrs. Sampang-Gomez’s ability to carry on a normal life. He did not feel the need then to refer her for X-rays or to any other experts.

On subsequent visits to Dr. Adno in October 2012, Mrs. Sampang-Gomez reported that her pain was getting better. She was able to do all of her housekeeping at home.

At that time, Mrs. Sampang-Gomez didn’t complain of any psychological symptoms. The first time that she had psychological complaints according to Dr. Adno was on July 30, 2013. She then complained of severe fear and nervousness when she gets in a car, specifically if other cars come close. Her fear was much worse on highways.

During the year after the accident, her pain continued to be an issue, but less so. It seemed to improve with time. Her nervousness continued to be an issue, but that seemed to improve over time as well. Mrs. Sampang-Gomez was referred for physiotherapy. She informed Dr. Adno that she was seeing a therapist for her nervousness through the insurance company.

Two years post-accident, Mrs. Sampang-Gomez continued to complain of intermittent back pain that slowly improved. In addition, she had some mild anxiousness and nervousness when driving in a car.

In April 2015, Dr. Adno sent Mrs. Sampang-Gomez for an X-ray. The study date was April 30, 2015.³ The X-Ray report revealed that the spinal alignment was normal, there were no fractures, the disc space was fine. The spine was essentially normal, with no structural damage.

Dr. Adno’s evidence was that Mrs. Sampang-Gomez had pre-accident emotional issues with respect to attempting to become pregnant. Mrs. Sampang-Gomez had a strong desire to have children, and was very upset about the fact that she was unable to become pregnant. She also had concerns regarding breast and fibroid issues.

The last time that Mrs. Sampang-Gomez attended with Dr. Adno was June 6, 2016. That visit was a follow-up for cholesterol. She was also having an issue with her right ear. She was still complaining of nervousness on the highway, but it was much improved. She had occasional discomfort in her back.

Dr. Adno testified that the accident made Mrs. Sampang-Gomez slightly more anxious. She had always been a fairly anxious person.

Evidence of Dr. Judith Elizabeth Pilowsky

Dr. Pilowsky has practiced as a psychologist for 23 years. She first assessed Mrs. Sampang-Gomez on June 11, 2013. The pre-screening interview was conducted on February 22, 2013. The pre-screening was conducted on the telephone, and took approximately twenty to thirty minutes.

In the pre-screening interview, Mrs. Sampang-Gomez explained that after the accident she was not sleeping well, she was in pain, and her functioning had changed. She was preoccupied with her ability to perform the activities that she had done before the accident. She was waking up throughout the night because of pain. She would turn and toss, and pain was disturbing her ability to find a proper sleeping position. She was stressed and nervous. She had become nervous in the car as a passenger, and she was afraid of having another accident.

Mrs. Sampang-Gomez complained of headaches, pain in her back, and she was attending physiotherapy at the time.

Dr. Pilowsky completed an OCF-18, dated February 22, 2013.⁴ Dr. Pilowsky requested a psychological assessment. She believed that it was reasonable and necessary because Mrs. Sampang-Gomez exhibited symptoms of anxiety and fear. They were preventing her from carrying on with her daily activities and with the tasks that she was engaging in before the accident. Furthermore, if these symptoms were left untreated, then instead of resolving on their own, they would become chronic.

In the first paragraph of this OCF-18, Dr. Pilowsky noted as follows:

Please note that this patient does not have a pre-existing condition; therefore, she does not fit the criteria of what is considered to be a minor injury according to the SABS, Minor Injury Guideline.

The OCF-18, dated February 22, 2013, was denied by Personal. Nevertheless, Dr. Pilowsky proceeded to perform the assessment on June 11, 2013.

Dr. Pilowsky referred to her assessment report, dated June 11, 2013.⁵ When she met Mrs. Sampang-Gomez for the assessment, Mrs. Sampang-Gomez was still afraid of travelling in vehicles. That was detracting from plans that she made prior to the accident. She was tired, she was crying, and nervous. She was still having issues with sleeping. She wasn’t participating in activities to the same degree as prior to the accident.

Dr. Pilowsky noted that when the accident first occurred, Mrs. Sampang Gomez experienced persistent back pain. With the help of physiotherapy and massage therapy treatment, the pain vastly improved within the first month.

Dr. Pilowsy administered the Multidimensional Pain Inventory, a test that looks at various aspects of how a person copes with pain. She found that the result was anomalous. The answers were confusing and inconsistent, so essentially the test was invalid.

Dr. Pilowsky also administered the Beck Depression Inventory and the Beck Anxiety Inventory. The result of the Beck Depression Inventory showed a minimal range of symptoms, and the result of the Beck Anxiety Inventory showed a mild range of symptoms.

Dr. Pilowsky’s diagnosis at that time was vehicular anxiety. In her assessment of June 11, 2013, she provided a GAF score of 60-65, which lies between moderate to mild problems.

Mrs. Sampang-Gomez’s mood had improved between the pre-screening interview of February 2013 and the assessment of June 2013. In her recommendations, Dr. Pilowsky recommended 12 sessions of treatment, to focus on accident-related anxiety with respect to being a passenger in a vehicle.

Dr. Pilowsky noted as follows in the report:

Please note that, even though Ms. Sampang-Gomez does not have a pre-existing condition, she does not fit the criteria of what is considered to be a minor injury according to the SABS, Minor Injury Guideline. Therefore, the current psychological injuries and/or sequelae are a direct result of the accident. Furthermore, in my professional opinion, the patient will not be able to achieve maximal recovery under the limit of the Minor Injury Guideline as referred to in Section 18(1) of SABS.

These treatments began on July 5, 2014. Mrs. Sampang-Gomez attended 12 treatments. They were twice a month, from July 5, 2014 to January 8, 2015. In these sessions, Dr. Pilowsky provided techniques to deal with phobia, and to desensitize Mrs. Sampang-Gomez to the anxiety when she was confronted with stimuli that would remind her of the accident.

Dr. Pilowsky testified that during the treatment sessions, she discovered other problems that troubled Mrs. Sampang-Gomez. She felt a deep sense of shame, and she was feeling depressed. She felt like a failure, and she was losing her faith in God. She gained about 30 pounds. Her anxiety had minimally improved. Her passenger anxiety was a little bit better.

Dr. Pilowsky also referenced her reassessment report, dated November 20, 2014.⁶ On that date, Mrs. Sampang-Gomez came in for a reassessment. Dr. Pilowsky’s diagnosis was “somatic symptom disorder, with predominant pain persisted, moderate, with secondary depressive symptoms, and post-traumatic stress disorder symptoms with vehicular anxiety”.

Pain was still affecting Mrs. Sampang-Gomez a great deal. She was experiencing a depressed mood most of the time, with feelings of hopelessness. She suffered from flashbacks and intrusive thoughts.

For the reassessment, Dr. Pilowsky again administered the Beck Depression Inventory and the Beck Anxiety Inventory. Both scores were on the high end of mild, almost moderate. Dr. Pilowsky continued to treat Mrs. Sampang-Gomez, even though the Treatment Plan was not approved.

Dr. Pilowsky referred to the OCF-18 Assessment Treatment Plan, dated October 29, 2014.⁷ This is the driving integration assessment. The purpose of this OCF-18 was to request a Drive Lab Assessment, which includes a certified driver and a vehicle that has a dual brake system. The goal was to diminish Mrs. Sampang-Gomez’s anxiety while in a car as a passenger.

Reference was had to the Drive Lab Report, dated January 21, 2015.⁸ Mrs. Sampang-Gomez was assessed in terms of her responses in a car, and was observed in various situations. Mrs. Sampang-Gomez began in the back seat of the vehicle during this assessment, but eventually she agreed to sit in the front seat. Her demeanour was tense and her posture was rigid. When travelling in a vehicle, Mrs. Sampang-Gomez exhibited a pounding heart, tension, perspiration, stomach upset, and felt out of control. As a result of the Drive Lab Report, Dr. Pilowsky recommended that she become part of a passenger desensitization program.

Dr. Pilowsky testified that she believed that in January 2015, Mrs. Sampang-Gomez had been suffering emotionally, and her anxiety was genuine. Dr. Pilowsky admitted that she did not examine any medical records pertaining to Mrs. Sampang-Gomez. All of her diagnoses were based on Mrs. Sampang-Gomez’s clinical presentation, and reporting of symptoms.

Evidence of Mrs. Edelina Sampang-Gomez

Mrs. Sampang-Gomez testified on her own behalf. She is originally from the Philippines, and has lived in Canada for more than 16 years. She has a Bachelor of Science in Industrial Engineering, and worked as a nanny and babysitter. She has also had retail jobs. At the time of the accident, she was working as a nanny and babysitter.

Prior to the accident, Mrs. Sampang-Gomez didn’t have serious health issues. She experienced breast and back pain. She attended with Dr. Adno 3 or 4 times per year.

With respect to the accident, in Brampton, she was a front-seated passenger in a friend’s car. The vehicle that she was travelling in made a left-hand turn to proceed west, and was struck by a truck proceeding straight through the intersection. She was travelling with her husband to a birthday party of a friend’s daughter. After the accident, her friends came to the scene to pick them up.

Immediately after the accident, they continued to the birthday party. The following day, Mrs. Sampang-Gomez and her husband went to Humber River Hospital, where they were checked by a physician.

Several weeks after the accident, Mrs. Sampang-Gomez travelled home to the Philippines. She was there from November 2012 through January 2013.

Following the accident, she developed back pain. She still can’t do any heavy lifting. She takes Tylenol for her back pain.

Mrs. Sampang-Gomez still experiences pain on her right side. Physiotherapy has helped with both her back pain and right pelvic pain. In addition, Mrs. Sampang-Gomez participated in massage therapy and stretching. She has not participated in physiotherapy since March 2013.

Mrs. Sampang-Gomez testified that because of her cultural background, she has difficulty talking about mental illness and emotional difficulties. She was treated by Dr. Pilowsky starting in July 2014 for her psychological issues post-accident. When she first began seeing Dr. Pilowsky, she was experiencing nervousness, trembling, and anxiety. She also had difficulty sleeping. She told Dr. Pilowsky about her neck and back pain.

Mrs. Sampang-Gomez had a total of 12 treatments with Dr. Pilowsky. She testified that she improved over the course of treatments. She still experiences anxiety in a vehicle when she is the front-seated passenger. She gets nervous when driving on a highway, when she’s travelling at a high rate of speed, and when driving after dark. She continues to experience a rapid heartbeat with perspiration with her driving anxiety. Dr. Pilowsky’s treatment helped a great deal with the driving anxiety.

Mrs. Sampang-Gomez testified that prior to the accident, she intended to go for driving lessons, but has since lost her motivation. Her inability to drive has negatively impacted her independence, and her job search. Neither she nor her husband owns a car. She has never had a driver’s licence.

Her pain continues sporadically, in her right pelvis. She no longer experiences back pain.

Mrs. Sampang-Gomez testified that after the accident, she was able to participate in all of her pre-accident household responsibilities. Further, she was able to return to work, perform her regular duties, and work her regular hours. She also continued to enjoy her social and recreational activities.

Submissions of Mr. Singer, Counsel for the Applicant

Mr. Singer submitted that Mrs. Sampang-Gomez’s injuries fall outside of the Minor Injury Guideline. Therefore, she is entitled to the cost of examinations and the medical and rehabilitation treatment. Mr. Singer argued that:

1. Mrs. Sampang-Gomez’s psychological impairments are significant and ongoing such that they fall outside of the Minor Injury Guideline;
2. In accordance with s. 24(1) of the Schedule, the Insurer shall pay the costs of examinations on behalf of the Insured as they are reasonable fees charged by a health practitioner; and
3. Mrs. Sampang-Gomez reported that her psychological treatment helped her, and the only reason she stopped attending was because the Insurer ceased coverage.

Mr. Singer referred to Lo-Papa and Certas⁹ where Arbitrator Arbus confirmed that the burden of proof, when assessing whether a claimant’s injuries fall outside of the Minor Injury Guideline, rests with the claimant.

Mr. Singer relied on the case D.J. and Aviva¹⁰ where the Applicant was diagnosed with psychological injuries, including depression, anxiety and cognitive impairment. There, the Tribunal found the injuries to be outside of the Minor Injury Guideline. Mrs. Sampang-Gomez was diagnosed with similar psychological injuries, including depression and anxiety, which interfere with her daily life. Therefore, her injuries should also fall outside of the Minor Injury Guideline.

The test to apply in deciding whether Mrs. Sampang-Gomez’s injuries are within the Minor Injury Guideline is whether her whole impairments are minor, not whether any one injury is minor. Mr. Singer submitted that Mrs. Sampang-Gomez’s predominant injury is psychological, which cannot be treated within the confines of the Minor Injury Guideline.¹¹

Mr. Singer submitted that Insurers have an ongoing duty to reassess claims as new information becomes available.¹² Personal was obliged, but failed, to consider Dr. Pilowsky’s report of November 20, 2014.

Mr. Singer argued that the evidence of Dr. Hines was unreliable and ought not to be given any weight. It lacked depth, analysis, and objectivity, and worked backwards from its conclusion. Mr. Singer concluded that the evidence of Dr. Pilowsky was relevant and substantial. Her clinical findings and diagnoses were made with detailed analysis and fair consideration to areas where Mrs. Sampang-Gomez had improved and had not improved. She spent more time with Mrs. Sampang-Gomez, and was in a better position to assess her psychological condition.

Personal’s Evidence and Submissions

Evidence of Dr. Julie Anne Millard

Dr. Millard is a physiatrist, certified with the Royal College of Physicians and Surgeons of Canada. She studied at an American school in the Caribbean called Saba University of Medicine. She graduated in 2008, and then completed her residency in physical medicine and rehabilitation at McMaster University in Hamilton, Ontario in 2013.

Dr. Millard was retained by Personal to perform an independent medical assessment to determine the applicability of the Minor Injury Guideline, and also to evaluate and determine whether a particular Treatment Plan was reasonable and necessary. Dr. Millard assessed Mrs. Sampang-Gomez on November 19, 2015.

In her examination, Dr. Millard observed that Mrs. Sampang-Gomez had a full range of motion in her neck in all directions. However, she did report some neck pain. She had a full range of shoulder motion. Mrs. Sampang-Gomez also had a full lumbar range of motion.

Dr. Millard concluded that Mrs. Sampang-Gomez sustained soft tissue muscular ligamentous injuries. Her neurological examination was normal. Dr. Millard’s opinion was that based on the history, physical examination and review of the medical documentation, Mrs. Sampang-Gomez’s injuries fell within the Minor Injury Guideline.

Evidence of Dr. Robert Brian Hines

Dr. Hines completed his medical degree at McMaster University in Hamilton, Ontario, and did his residency training at the University of Toronto. He has been practicing as a psychiatrist since 1986. Dr. Hines was retained by Personal to provide an expert opinion with regards to Mrs. Sampang-Gomez. He was asked to address a Treatment and Assessment Plan submitted by Dr. Pilowsky, dated February 22, 2013. Dr. Hines met with Mrs. Sampang-Gomez on May 29, 2013.

Mrs. Sampang-Gomez told Dr. Hines that her headaches and her chest pain had fully resolved. She had only occasional pain in her upper back at the time of his assessment. There were no other physical complaints that she reported.

Mrs. Sampang-Gomez was generally fine travelling in a car, although she felt nervous on the highway if she was travelling at a very fast speed or there was a lot of traffic.

Dr. Hines testified that individuals who have a specific phobia relating to a car will have anxiety approaching a car, have anxiety in the car, and have anxiety travelling around the block. It’s associated with just being in a vehicle and feeling vulnerable. Mrs. Sampang-Gomez’s level of anxiety did not meet the criteria of a specific phobia. She wasn’t totally avoiding travelling in a car, there was no evidence of an extreme response, and her reported symptoms were simply anxiety that most people experience after a car accident.

Dr. Hines conducted a medical status examination. The results were essentially normal. He observed that Mrs. Sampang-Gomez functioned very well objectively. There was no evidence of any type of mental health symptomatology.

Dr. Hines was subsequently asked to comment on a further Treatment Plan, Dr. Pilowsky’s Reassessment Report, dated November 20, 2014. From a review of Dr. Pilowsky’s two reports, Dr. Hines didn’t see anything that would warrant treatment. Furthermore, Dr. Hines didn’t see documentation to support any psychiatric illness in Dr. Adno’s clinical notes and records.

With respect to the Drive Lab Report, dated January 21, 2015, Dr. Hines indicated that it was consistent with Mrs. Sampang-Gomez’s anxiety as a passenger. However, her anxiety was not to the degree or extent of a psychiatric illness. It didn’t require treatment.

Dr. Hines concluded that Mrs. Sampang-Gomez did not have a psychiatric illness or diagnosis. Therefore, he held the view that any of her subjective emotional complaints would be captured by the Minor Injury Guideline. He was of the view that the Treatment Plans submitted by Dr. Pilowsky were not reasonable and necessary. Further, his view was that any symptoms suffered by Mrs. Sampang-Gomez would dissipate with no further treatment.

Submissions of Mr. Murray, Counsel for Personal

Mr. Murray submitted that the Treatment Plans submitted by Mrs. Sampang-Gomez were not reasonable and necessary. Furthermore, Mrs. Sampang-Gomez led no evidence that she sustained an injury that is that is not predominantly a “minor injury” as defined in s. 3(1) of the Schedule. She did not allege that she had a pre-existing medical condition that would have prevented her from achieving maximal recovery if she was subject to the Minor Injury Guideline.

Mr. Murray referenced Dr. Hines’ three reports, introduced as Exhibits 11, 12 and 13. In his report, dated June 13, 2013,¹³ Dr. Hines noted that according to Mrs. Sampang-Gomez, her musculoskeletal injuries had almost entirely resolved. Mrs. Sampang-Gomez admitted that apart from nervousness while travelling at high speeds or in close proximity to other vehicles, she was emotionally fine when riding in a vehicle. Dr. Hines concluded that Mrs. Sampang-Gomez did not sustain a psychological or psychiatric illness, that her injuries were covered by the Minor Injury Guideline, and that the Treatment Plan was not reasonable or necessary.

On July 31, 2013, Dr. Hines prepared an Addendum Report¹⁴ following his review of Dr. Pilowsky’s report, dated June 11, 2013. His opinion remained the same.

On December 16, 2014, in response to a further Treatment Plan submitted by Dr. Pilowsky, Dr. Hines prepared a further report.¹⁵ In this report, he indicated that there was no substantial evidence to support additional psychological treatments or assessments.

Mr. Murray also referred to the two reports of Dr. Millard. In her first report, dated December 8, 2015,¹⁶ Dr. Millard diagnosed Mrs. Sampang-Gomez with soft tissue injuries to her cervical spine, thoracic spine, and lumbar spine. Dr. Millard found that Mrs. Sampang-Gomez did not suffer from an impairment as a result of the accident, that her injuries were subject to the Minor Injury Guideline, and concluded that she did not require any further treatment or medication.

On October 7, 2016, Dr. Millard prepared a further report¹⁷ where she noted that, upon review of the medical documentation and forms in the file, her opinion remained unchanged.

Mr. Murray noted that pursuant to the Schedule, an Insurer is required to pay for “reasonable and necessary” medical expenses incurred by an Insured and “reasonable fees” for the conduct of an assessment.¹⁸

Pursuant to s. 18(1) of the Schedule, an Insurer is not required to pay more than $3,500.00 “in respect of an insured person who sustains an impairment that is predominantly a minor injury”. Section 3(1) of the Schedule defines a “Minor Injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae”.

Mr. Murray relied on Scarlett v. Belair,¹⁹ which stated that the onus of establishing an entitlement to treatment beyond the Minor Injury Guideline rests with the Insured, who always bears the burden of showing that he or she falls within the scope of coverage. The Insured must establish that his or her impairment is predominantly a non-minor injury.

Mr. Murray also referenced Guidelines 02/11 and 01/14. Both Guidelines are to be considered in any interpretation of the Schedule pursuant to s. 268.3 of the Insurance Act.

Analysis

The issue in this Hearing is whether or not Mrs. Sampang-Gomez’s injuries sustained in the accident come within the Minor Injury Guideline. If they do, then it follows that the three Treatment Plans in dispute are not payable by Personal.

Mrs. Sampang-Gomez’s position is that she suffered psychological injuries that fall outside of the Minor Injury Guideline. These injuries according to Mrs. Sampang-Gomez are significant and ongoing.

I disagree and find that Mrs. Sampang-Gomez has not met her burden of proof. With respect to her psychological complaints, I find it compelling that Mrs. Sampang-Gomez didn’t bring these complaints to her family physician, Dr. Adno, until almost a year after the accident. However, she did see Dr. Adno for several visits initially after the accident. It wasn’t until July 30, 2013 that Mrs. Sampang-Gomez mentioned vehicular anxiety to Dr. Adno. With respect to Mrs. Sampang-Gomez’s psychological complaints, Dr. Adno’s evidence was that the accident made Mrs. Sampang-Gomez slightly more anxious.

In addition to the evidence of Dr. Adno, the evidence of Dr. Hines indicated that Mrs. Sampang-Gomez did not have a psychiatric condition that would be outside of the Minor Injury Guideline. While she did have vehicular anxiety, it did not meet the criteria of a specific phobia. I found Dr. Hines’ evidence to be thoughtful and thorough.

I am mindful of the evidence of Dr. Pilowsky, who testified that Mrs. Sampang-Gomez’s vehicular anxiety was serious enough to remove her from the Minor Injury Guideline. However, I give Dr. Pilowsky’s evidence and reports less weight than that of the other physicians who testified. Dr. Pilowsky admitted in her cross-examination that she did not examine any medical records pertaining to Mrs. Sampang-Gomez. All of her diagnoses were based on Mrs. Sampang-Gomez’s clinical presentation and reporting of symptoms.

In addition, Dr. Pilowsky noted in her evidence that Mrs. Sampang-Gomez did not suffer from any pre-existing condition that would remove her from the Minor Injury Guideline. I cannot find that vehicular anxiety is sufficient to remove Mrs. Sampang-Gomez from the Minor Injury Guideline. She does not have a driver’s licence, nor does she own a vehicle. The fact that she suffers some anxiety when a passenger in a vehicle or on public transit is not sufficient to remove her from the Minor Injury Guideline.

This case is different than D.J. and Aviva,²⁰ relied upon by Mrs. Sampang-Gomez. In that case, the Applicant’s social and cognitive behaviour were impacted as a result of the accident. The Applicant “socialized less, suffered with headaches, pain in her shoulders, lower back, ankle and neck, has trouble sleeping, has nightmares about the accident, worried about driving, stress, anxiety, loss of motivation, loss in energy, hopelessness, helplessness, weight loss, anger, irritability, concentration problems and has become more reclusive and isolated”.²¹

The present case is markedly different. Mrs. Sampang-Gomez’s main complaint at the time of the Hearing was vehicular anxiety. Her physical complaints had largely resolved, and there was no evidence of changes in her social or cognitive behaviour.

On balance, the weight of the evidence from Dr. Adno, Dr. Millard, and Dr. Hines indicates that Mrs. Sampang-Gomez’s injuries are minor in nature. Dr. Hines testified that Mrs. Sampang-Gomez’s vehicular anxiety would ultimately dissipate over time. Mrs. Sampang-Gomez has not met the burden of proof that rests upon her to remove her injuries from being predominately a minor injury. Accordingly, Mrs. Sampang-Gomez is subject to the Minor Injury Guideline cap of $3500.00, which has already been paid. Therefore, the Treatment Plans in dispute are not payable.

EXPENSES:

Personal is entitled to its reasonable expenses of this Arbitration. If the parties are unable to agree on the quantum of expenses in this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

July 24, 2017

Deborah Anschell Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. Mrs. Sampang-Gomez’s injuries fall within the Minor Injury Guideline within the meaning of the Schedule.
2. Mrs. Sampang-Gomez is not entitled to payments for the cost of examinations and medical treatment for the following: a) $1,986.00 for a psychological assessment pursuant to Treatment Plan (OCF-18), dated February 22, 2013; b) $2,287.92 for psychological treatments pursuant to Treatment Plan (OCF-18), dated June 11, 2013; c) $1,996.00 for a Driver’s Re-Integration Assessment pursuant to Treatment Plan (OCF-18), dated October 29, 2014.
3. Personal is entitled to its expenses in respect of the Arbitration. If the parties are unable to agree on the quantum of the expenses of this matter, the parties may request an appointment for determination of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

July 24, 2017

Deborah Anschell Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 2, Disability Certificate, dated September 29, 2012.
3. 3Exhibit 3, Radiologist’s X-Ray Report, dated April 30, 2015.
4. 4Exhibit 5.
5. 5Exhibit 6.
6. 6Exhibit 8.
7. 7Exhibit 9.
8. 8Exhibit 10.
9. 9Lo-Papa and Certas Direct Insurance Company (FSCO A12-005538, May 14, 2014).
10. 10D.J. and Aviva Insurance Canada (LAT 16-00098/AABS, November 29, 2016).
11. 11Scarlett v. Belair Insurance, 2015 ONSC 3635.
12. 12Cowans and Motors Insurance Corporation (FSCO A09-003237, October 15, 2010).
13. 13Exhibit 11.
14. 14Exhibit 12.
15. 15Exhibit 13.
16. 16Exhibit 18.
17. 17Exhibit 19.
18. 18Sections 15(1) and 25(1).
19. 19Supra, note 11.
20. 20Supra, note 10.
21. 21Ibid., at para. 20.